2019 Supreme(SC) 549

SUPREME COURT OF INDIA
R. Banumathi, R. Subhash Reddy, JJ.
BHIVCHANDRA SHANKAR MORE – Appellant
VERSUS
BALU GANGARAM MORE & ORS. — Respondent
Civil Appeal No. 4669 of 2019 (Arising Out of SLP(Civil) No. 28938 of 2014)
Decided on : 07-05-2019

IMPORTANT POINTS
(1) If Court is satisfied that defendant was not duly served or that he was prevented for sufficient cause, court may set aside ex-parte decree and restore suit to its original position.
(2) Defendant cannot be deprived of statutory right of appeal merely on the ground that application filed by him under Order IX Rule 13 CPC has been dismissed.
(3) Rules of limitation are not meant to destroy rights of parties.
(4) Where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from final decree.

Headnote:(A) Civil Procedure Code, 1908 – Order 9 Rule 13 and Section 96(2) – Setting aside ex-parte decree – Delay in filing first appeal against ex-parte decree – Defendant who suffered an ex-parte decree has two remedies:- (i) either to file application under Order IX Rule 13 CPC to set aside ex-parte decree to satisfy court that summons were not duly served or those served, he was prevented by sufficient cause from appearing in court when the suit was called for hearing; (ii) to file regular appeal from original decree to first appellate court and challenge ex-parte decree on merits – Scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different – In an application filed under Order IX Rule 13 CPC, Court has to see whether summons were duly served or not or whether defendant was prevented by any sufficient cause from appearing when suit was called for hearing – If Court is satisfied that defendant was not duly served or that he was prevented for sufficient cause, court may set aside ex-parte decree and restore suit to its original position. (Paras 10 and 11)

       (B) Civil Procedure Code, 1908 – Order IX Rule 13 and Section 96(2) – Setting aside ex-parte decree – In terms of Section 96(2) CPC, appeal lies from an original decree passed ex-parte – In regular appeal filed under Section 96(2) CPC, appellate court has wide jurisdiction to go into merits of decree – Scope of enquiry under two provisions is entirely different – Merely because defendant pursued remedy under Order IX Rule 13 CPC, it does not prohibit defendant from filing appeal if his application under Order IX Rule 13 CPC is dismissed – Right of appeal under Section 96(2) CPC is a statutory right – Defendant cannot be deprived of statutory right of appeal merely on the ground that application filed by him under Order IX Rule 13 CPC has been dismissed – Only in cases where defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing two remedies consecutively, court may decline to condone delay in filing first appeal – If court refuses to condone delay in time spent in pursuing remedy under Order IX Rule 13 CPC, defendant would be deprived of statutory right of appeal in challenging decree on merits. (Paras 11, 12 and 14)

       (C) Limitation Act, 1963 – Section 5 – Civil Procedure Code, 1908 – Section 96(2) – Condonation of delay – Sufficient cause – Sufficient cause should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to appellant – Rules of limitation are not meant to destroy rights of parties – Generally, delays in preferring appeals are required to be condoned, in interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to party seeking condonation of delay – Time spent in pursuing application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning delay in filing first appeal – Impugned judgment of High Court cannot be sustained and is liable to be set aside. (Paras 15, 16 and 19)

       (D) Civil Procedure Code, 1908 – Section 97 and Order IX Rule 13 – Challenge to preliminary decree – Where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from final decree – Questions decided by court at stage of passing preliminary decree cannot be challenged at the time of final decree – If no appeal had been preferred against preliminary decree, suit filed by respondents-plaintiffs being a suit for partition, appellant would be deprived of opportunity in challenging decree on merits – In interest of justice, appellant and respondents No.14 and 15 are to be given opportunity to challenge ex-parte decree on merits, notwithstanding dismissal of their application filed under Order IX Rule 13 CPC. (Para 18)

       Facts of Case:

       Instant appeal arises out of judgment passed by High Court of Judicature at Bombay in Writ Petition in and by which High Court refused to condone the delay in filing first appeal challenging ex-parte decree passed in Regular Civil Suit.

       Findings of Court:

       In facts and circumstances of present case, time spent in pursuing application under Order IX Rule 13 CPC is to be taken as “sufficient cause” for condoning delay in filing first appeal. Impugned judgment of High Court cannot be sustained and is liable to be set aside.

       Result : Appeal allowed.